Lord Stevenson of Balmacara (Lab)

My Lords, it is a feature of your Lordships’ House that certain topics and Bills within them tend to attract a small and very intense group of persons, who get together to talk a language that is not generally understood by the rest of the world—certainly not by the rest of this House—and get down to business with an enthusiasm and attitude which is very refreshing. I am seeing smiles from the other side of the House. This is not meant to be in any way a single-party point—just a very nice example of the way in which the House can operate. I have already been struck today, as I am sure have others in the group that I am talking about—who know who they are—by the recognition that we have perhaps been a little narrow in our thinking. A couple of the speeches today have brought a new thought and a new sense of engagement with this particular subject and the others we deal with. We need to be aware of that, and I am very grateful to those noble Lords. In addition, I am grateful to the repeating by the noble Lord, Lord Knight, of the speeches he had to make in 2018 and subsequent dates, and also the wonderfully grumpy speech from the noble Baroness, Lady Kidron. We have also got to take into account what we got wrong on joining the European market—which I certainly look forward to. It is a serious point. I am also very grateful to my noble friend the Minister for setting out the new Government’s vision for data protection, for her letters—which have been very useful—and for her help in setting up the meeting I had with her officials, which I found very useful indeed. Our Minister has done a really good job in getting the Bill ready so quickly. It is good that some of the more egregious measures included in the previous Bill—particularly the changes on direct marketing during elections and the extensive access to bank account details—have gone. There are indeed some good extras as well. We have already had some excellent speeches setting out some concerns. I have one major concern about the current Bill and three rather lesser issues which I suspect will need further debate and discussion in Committee. I will cover them quite briefly. My major concern is that, although the Bill has the intention to boost growth and productivity, and also makes a valiant attempt to provide a unified set of rules and regulations on data processing, it may in the process have weakened the protections that we want to see here in the exploitation of personal data. Data, as other noble Lords have said, is of course not just for growth and prosperity. There will be, as we have heard, clear, practical benefits in making data work for the wider social good and for the empowerment of working people. There is huge potential for data to revitalise the public services. Indeed, I liked the point made by the noble Lord, Lord Knight, that data is in some way an asset missing from the balance sheet on many operations, and we need to think carefully about how best we can configure that to make sure that the reality comes to life. There has been, of course, a huge change. We have moved into the age of AI, but we do not have the Bill in front of us that will deal with that. The GDPR needs a top-to-toe revision so that we can properly regulate data capture, data storage, and how it may be best shared in the public interest. As an example of that, following the Online Safety Act we have a new regulator in Ofcom with the power to regulate technology providers and their algorithmic impacts. The Digital Markets, Competition and Consumers Act has given the Competition and Markets Authority new and innovative powers to regulate commercial interests, which we heard about yesterday at an all-party group. However, this Bill has missed the opportunity to strengthen the role of the ICO so we can provide a third leg capable of regulating the use of data in today’s AI-dominated world. This is a gap that we need to think very carefully about. I hope my noble friend the Minister will acknowledge that there is a long way to go if this legislation is to earn public confidence and if our data protection regime is to work not just for the tech monopolies but for small businesses, consumers, workers and democracy. We must end the confusion, empower the regulators, and in turn empower Parliament. There are three specific issues, and I will go through them relatively quickly. The first is on Clauses 67 and 68, already referred to, where the Bill brings in wording from Recital 159 of the GDPR—as we inherited it from the EU. This sets out how the processing of personal data for scientific research purposes should be interpreted. The recital is drafted in extraordinarily broad terms, including “technological development and demonstration, fundamental research, applied research and privately funded research”. It specifically mentions that: “Scientific research purposes should also include studies conducted in the public interest in the area of public health”. The latest ICO guidance, which contains a couple of references to commercial scientific research, says that such research “can also include research carried out in commercial settings, and technological development, innovation and demonstration”. However, we lack a definition, and it is rather curious that the definition of research does exist elsewhere in statute in the UK laws. It is necessary in order to fund the research councils, for example. It is also part of the process of the tax code in order to get research benefits and tax benefits for research. So, we have a definition somewhere else, but somehow the Bill avoids that and tries to go down a clarification route of trying to bring forward into the current legislation that which is already the law—according to those who have drafted it—but which is of course so complicated that it cannot be understood. I think the Government’s thinking is to provide researchers with consistency, and they say very firmly that the Bill does not create any new permissions for using or reusing data for research purposes. In my meeting with officials, they were insistent that these clauses are about fine-tuning the data protection framework, making clarifications and small-scale changes but reducing uncertainties. I agree that it is helpful to have the key provisions—currently buried, as they are, in the recitals—on the face of the Bill, and it may be that the new “reasonableness” test will give researchers greater clarity. Of course, we also retain the requirement that research must be in the public interest. But surely the issue that we need to address is whether the Bill, by incorporating new language and putting in this new “reasonableness” test, will permit changes to how data held by the NHS, including patients’ medical records, could be used and shared. It may be that the broad definition of “scientific research”, which can be “publicly or privately funded” and “commercial or non-commercial” inadvertently waters down consent protections and removes purpose-limitation safeguards. Without wishing to be too alarmist, we need to be satisfied that these changes will not instigate a seismic change in the rules currently governing NHS data. It is relevant to note that the Government have stated in a separate way an intention to include in the next NHS 10-year plan significant changes as to how patients’ medical records are held and how NHS data is used. Launching a “national conversation” about the plans, the Secretary of State, my right honourable friend Wes Streeting MP, highlighted a desire to introduce electronic health records called “patient passports” and to work “hand in hand” with the private sector to use data to develop new treatments. He acknowledged that these plans would raise concerns about privacy and about how to get the “best possible deal for the NHS in return” for private sector access to NHS data. The details of this are opaque. As currently drafted, the Bill is designed to enable patient passports and sharing of data with private companies, but to my mind it does not address concerns about patient privacy or private sector access to health data. I hope we can explore that further in Committee and be reassured. My second point concerns the unlicensed use of data created by the media and broader creative industries by developers of the large language models—this has already been referred to. UK copyright law is absolutely clear that AI developers must obtain a licence when they are text or data mining—the technique used to train AI models. The media companies have suggested that the UK Government should introduce provisions to ensure that news publishers and others can retain control over their data; that there must be significant penalties for non-compliance; and that AI developers must be transparent about what data their crawlers have “scraped” from websites—a rather unpleasant term, but that is what they say. Why are the Government not doing much more to stop what seems clearly to be theft of intellectual property on a mass scale, and if not in this Bill, what are their plans? At a meeting yesterday of the APPG which I have already referred to, it was clear that the CMA does not believe that it is the right body to enforce IP law. But if it is not, who is, and if there is a gap in regulatory powers, should this Bill not be used to ensure that the situation is ameliorated? My third and final point is about putting into statute the previous Government’s commitments about regulating AI, as outlined in the rather good Bletchley declaration. Does my noble friend not agree that it would be at least a major statement of intent if the Bill could begin to address “the protection of human rights, transparency and explainability, fairness, accountability, regulation, safety, appropriate human oversight, ethics, bias mitigation, privacy and data protection”? These are all points raised in the Bletchley declaration. We will need to address the governance of AI technologies in the very near future. It does not seem wise to delay, even if the detailed approach has yet to be worked through and consulted upon. At the very least, as has been referred to, we should be picking up the points made by the Ada Lovelace Institute about: the inconsistent powers across regulators; the absence of regulators to enforce the principles such as recruitment and employment, or diffusely regulated areas of public service such as policing; the absence of developer-focused obligations; and the absence and high variability of meaningful recourse mechanisms when things go wrong, as they will. When my noble friend Lord Knight of Weymouth opened the Second Reading of the last Government’s data protection Bill, he referred to his speech on the Second Reading during the passage of the 2018 Act—so he has been around for a while. He said: “We need to power the economy and innovation with data while protecting the rights of the individual and of wider society from exploitation by those who hold our data”.—[Official Report, 19/12/23; col. 2164.] For me, that remains a vision that we need to realise. It concerns me that the Bill will not achieve that.